Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :04.05.2019
Registered On :19.08.2019
Decided on :15.01.2022
Duration : Y-02/M-08/D-13
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 817 OF 2019
CNR NO.- MHCC01-004968-2019
Exhibit- 08
Yash Enterprises
a partnership firm duly registered under the
Indian Partnership Act, 1932 having its office
at B-7, Wadala Udyog Bhavan, Naigao Cross
Road, 8, Katrak Road, Wadala, Mumbai- 400
0131
... Plaintiff
V/s.
1. J.P. Pile Foundation
2. Mr. Manjit Singh
Gala No. 1, Shree Balaji Industrial Complex,
behind Dodhia Petrol Pump & Safari Hotel,
W.E. Highway Kashi Mira Thane – 401 104. ... Defendants
Appearance:-
Mr. Prashant Chande Advocate for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 15/01/2022
-- 1 of 8 --
Summ. Suit No.817/2020
2
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under
order XXXVII of Code of Civil Procedure 1908 against the defendants.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The Plaintiff is a partnership firm duly registered under the
Indian Partnership Act . The defendant no.1 is a firm and defendant
no.2 is the proprietor of defendant no.1 .
3. The defendants had negotiation with the plaintiff for the sale and
supply of various goods namely Royal Arc Make & Welding Electrodes of
various quantity and size. It was agreed that the payment for said goods
was to be made by the defendants within 30 days / immediate. Further,
it is agreed that the defendants will pay the interest at the rate of 22%
p.a for overdue period. The defendants have placed orders on the
plaintiff from time to time for supply of said goods and the plaintiff
have sold, supplied and delivered to the defendant the goods ordered
by them from time to time. After adjusting part payments, a sum of Rs.
92,174/- with or accrued interest at the rate of 22% from the respective
due dates of invoices still remains payable by the defendants to the
plaintiff. The details and particulars of the outstanding dues are given in
the suit plaint. The defendants did not pay the outstanding balance
amount to the plaintiff and failed to pay the same even after repeated
requests. Hence, the advocates letter dtd. 11.11.2019 was sent to the
defendants. However, even after receipt of letter they avoided to comply
with the requisition thereof. The plaintiff averred that the defendants
-- 2 of 8 --
Summ. Suit No.817/2020
3
are liable to pay the outstanding amount with interest.
4. Thus, the plaintiff has filed the present suit against the
defendants for recovery. It is averred that the defendants are liable to
pay a sum of Rs.1,74,442/- and further interest on the principal
amount of Rs 92,174/- at the rate of 22% p.a to the plaintiff from the
date of suit till its realization. Hence, this suit.
5. The suit summons were duly served on the defendants but
they failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
6. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. Whether the plaintiff is entitled for
recovery of amount against the
defendants ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.1,74,442/- with
interest
@ 22% per annum
on the principal sum.
2. What order and decree? As per final order.
REASONS
7. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.07 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Copy of invoice bearing no. 893 for
Rs. 51,975/- dated 16.10.2014 .
Exh. 7/1
-- 3 of 8 --
Summ. Suit No.817/2020
4
Sr.
No.
Description of documents Exhibits
2 Copy of delivery challan bearing no.
16917 dated 15.10.2014
Exh. 7/2
3 Copy of invoice bearing no. 1279 for
Rs. 24,360/- dated 06.01.2015 .
Exh.7/3
4 Copy of delivery challan bearing no.
17208 dated 27.03.2015
Exh.7/4
5. Copy of invoice bearing no. 1658 for
Rs. 29,505/- dated 27.03.2015
Exh. 7/5
6 Copy of delivery challan bearing no.
17959 dated 27.03.2015
Exh.7/6.
7 Xopy of invoice bearing no. 694 for
Rs. 4,895/- dated 31.08.2016
Exh.7/7.
8 Xopy of delivery challan bearing no.
21036 dated 31.08.2016
Exh.7/8.
9 Copy of invoice bearing no. 971 for
Rs. 4,918/- dated 02.11.2016
Exh.7/9.
10 Copy of delivery challan bearing no.
21227 dated 02.11.2016
Exh.7/10.
11 Copy of the notice dated 30.11.2018 Exh.7/11.
12 Copy of A.D. cards Exh.7/12.
13 Copy of the cheque bearing no.
180708 dated 13.03.2019
Exh.7/13.
14 Copy of memo dated 13.03.2019 Exh.7/14.
15 Copy of the cheque bearing no.
982843
Exh.7/15.
16 Copy of memo dated 13.03.2019 Exh.7/16.
17 Copy of the cheque bearing no.
982844 dated 13.03.2019
Exh.7/17
18 Copy of memo dated 13.03.2019 Exh.7/18.
19 Copy of the notice dated 25.03.2019 Exh.7/19.
20 Copy of A.D cards Exh.7/20.
21 Particulars of claim Exh.7/21.
-- 4 of 8 --
Summ. Suit No.817/2020
5
AS TO POINT NO.1:
8. This is a summary suit which is not contested by the
defendants. The plaintiff has produced various documents on record.
Further, he has filed affidavit below Exh.05 regarding service of writ of
summons to the defendants. The affidavit of claim is filed below Exh.6.
The documents produced on record by the plaintiff shows that the
defendants received the goods covered with the invoices below Exh.07.
Further, it reveals from the record that the said transaction took place
from dtd.16.10.2014 till 20.11.2016, part payment of Rs.10,000/- has
been made on dtd. 30.5.2018, the notice/letter of demand was issued
to the defendants on dtd.11.11.2019 and the suit is filed on 04.05.2019.
As such, the plaintiff’s claim in the suit is well within limitation.
9. All the documents produced by the plaintiff at list Exhibit-
07 goes to establish that plaintiff has supplied goods to the defendants
as per their instructions and the defendants failed to repay the balance
amount of Rs.92,174/-, though received the letter of demand from the
plaintiff. Said amount is not repaid either by the defendants. Therefore
defendants are liable to pay the outstanding amount of Rs.92,174/-
with interest to the plaintiff. According to the plaintiff the amount of
Rs.1,74,442/- is calculated by them as the outstanding amount by
adding the interest at the rate of 22% p.a. In this background, I have
arrived at the conclusion that the plaintiff is entitled to recover sum of
Rs.1,74,442/- from the defendants.
10. According to the plaintiff the outstanding dues against the
defendants is Rs.1,74,442/- and said amount is calculated alongwith
interest at the rate of 22% p.a till the date of filing of the suit. So the
-- 5 of 8 --
Summ. Suit No.817/2020
6
total outstanding amount is Rs.1,74,442/-. Apart from said amount
which is due against the defendant on the date of filing of the suit, the
plaintiff has claimed interest at the rate of 22% per annum on the
principal amount. As per section 34 of the Code of Civil Procedure the
rate of interest may exceed 6% per annum, if the transaction is
commercial and there is no contract pertaining to the same between the
parties. In the present case the transaction is a commercial one and
there is contract existing between the parties as to the rate of interest
which shall be levied. As per the agreed terms mentioned on the invoice
below Exh.07, defendants are liable to pay the interest at the rate of
22% p.a. Therefore, I hold, the rate of interest at the rate of 22% per
annum would be just and proper to be awarded on the principal sum
adjudged i.e. amount of Rs.92,174/-. Hence, point no.1 is answered in
the affirmative.
AS TO POINT NO.2:
11. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.1,74,442/- from the
defendants with interest at the rate of 22% per annum on the principal
sum of Rs.92,174/- from the date of filing of the suit till its realization.
Plaintiff is also entitled to recover cost of the suit from the defendants.
Hence, in answer to point no.2, I proceed to pass the following order:
ORDER
1. The defendants shall pay Rs.1,74,442/- (Rs. One Lakh
Seventy Four Thousand Four Hundred Forty Two
Only) to the plaintiff, with interest at the rate of 22%
per annum on the principal sum of Rs.92,174/- from
the date of filing of the suit till its realization.
2. The defendants do pay costs of the suit to the plaintiff.
-- 6 of 8 --
Summ. Suit No.817/2020
7
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date :15/01/2022 Gr. Bombay
Dictated on : 15/01/2022
Typed on : 15.1.2022
Signed on : 17.1.2022
-- 7 of 8 --
Summ. Suit No.817/2020
8
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17/01/2022 02.00 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
15.1.2022
JUDGMENT/ORDER signed by
P.O.on
17.1.2022
JUDGMENT/ORDER uploaded on 17.1.2022
-- 8 of 8 --